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| Stephens Millirons law firm of Huntsville, AL |
The banker types, in this instance, are from Chase Mortgage, which held the note on our home. The lawyers are from the Huntsville firm of Stephens Millirons, which orchestrated the foreclosure, with attorney Robert Wermuth playing the lead role.
It's not like the relevant law is hard to find or difficult to understand. That tells me that someone intentionally wanted to shuffle several thousand dollars of our money to Liberty Duke. And that leads to this question: why?
The law can be found at a number of places, but it perhaps is most succinctly and recently stated in a case styled Cheryl Williams v. Wells Fargo Home Mortgage (S.D., Alabama, 2015). You will notice that Williams is a federal case, from a district court, which generally means it would not be binding precedent in foreclosure matters that tend to be governed by state law. But Williams is based largely on two Alabama state cases -- Springer v. Baldwin Co. Fed. Savings Bank, 562 So. 2d 138 (Ala. Sup. Ct., 1989) and Davis v. Huntsville Production Credit Assoc., 481 So. 2d 1103 (Ala. Sup. Ct., 1985 -- which are binding law.
The Williams court relied on Springer to spell out the basics on a foreclosure sale that produces a surplus:
[A] mortgagee (Chase) is, in a sense, a trustee for the mortgagor (Carol and me), and is charged with the `duty of fairness and good faith in its execution to the end that the mortgagor's property may be disposed of to his pecuniary advantage in the satisfaction of his debt.'" Springer, 562 So. 2d at 139 (quoting J.H. Morris, Inc. v. Indian Hills, Inc., 212 So. 2d 831, 843 (Ala. 1968) (emphasis added)). Thus, "[t]he mortgagee, as trustee for the mortgagor, is obligated to apply that profit realized after foreclosure and during the redemption period to the reduction of the mortgagor's debt. . . .
Consider the powerful language here. Chase, and its lawyers (Stephens Millirons) had a trustee relationship with Carol and me, with a duty to act in "fairness" and "good faith." That includes an obligation to apply any profit realized where it lawfully belongs. Where is that? The Davis case provides clarity:
The law is equally clear in regard to the issue of who gets the surplus proceeds. When property is sold at a foreclosure sale, conducted under the power of sale contained in a mortgage, at an amount greater than the indebtedness secured by the mortgage, the mortgagee (Chase) is liable to the mortgagor (Carol and me) for the surplus. Atlas, supra, 251 So.2d at 237; Bartlett v. Jenkins, 213 Ala. 510, 511, 105 So. 654, 655 (1925). The result is unchanged by the fact that the purchaser at the sale is the mortgagee. Muscle Shoals Bank, supra, at 298. See, also, Pruett v. First National Bank of Anniston, 229 Ala. 441, 157 So. 846 (1934).
Did Chase and Stephens Millirons fulfill their trustee duties by making sure that the surplus proceeds went to Carol and me? No, they did not -- not even close. They knowingly violated the law -- or they turned a blind eye -- as someone allowed the funds unlawfully to go to Liberty Duke.
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| Liberty Duke |
In a curious note, public records show that Spartan and JAG never have engaged in a transaction on any other house, at least in Shelby County. Why did our house go from one house-flipper to another?
For now, our focus is on the bankers and lawyers who made sure our surplus funds went not to us but to a party who had no lawful claim on them. How did Stephens Millirons, as Chase Mortgage's representative, respond when we inquired about the funds, and what does it say about their commitment to a "trustee" relationship with Carol and me? Were they more committed to their "thievery" relationship with Liberty Duke?
We will examine those questions in an upcoming post.
(To be continued)
JAG to Crider by Roger Shuler on Scribd
Thanks for the citations to law. Doesn't seem hard to understand, even for me.
ReplyDeleteSounds like from the beginning somewhat got a special deal on a really nice house. Where did they have the auction, in an abandoned mine at midnight?
ReplyDeleteThanks for the funny comment, @9:18. I needed the laugh. Theoretically, the auction was on the steps of the Shelby Co. Courthouse, but an abandoned mine at midnight would have been a more proper setting.
ReplyDeleteWe weren't there, so I don't know for sure that an auction even took place. It might have all been under the table, for all I know.
I said it yesterday, and I will repeat it today . . . if I were you, I'd be mad as hell.
ReplyDeletePut a pot of water on the stove. Dump horse feces in the pot. Apply heat until all the water is gone. Perform a inkblot test. 101 out of a hundred people will see a horse's ass. Keep applying heat Roger. What goes around comes around.
ReplyDeleteI am mad as hell, @9:59. I try not to let that show in my posts, but I'm infuriated, enraged, all those things. I'm particularly enraged when I think how much we could use that money. About $8,000 would be extremely helpful to us right now, and I'm not talking about helpful in terms of taking a vacation or eating at high-end restaurants. I'm talking about survival funds.
ReplyDeleteI'm enraged at Liberty Duke because she appears to be a glorified thief here. But I'm also enraged at Chase, the Huntsville law firm, Rob Riley, and anybody else who helped Duke obtain these funds.
Hope I never have to go through the agony of a foreclosure, but it's good to know the law on this. Your blog is known for a lot of things, but it offers a tremendous amount of public education. Many thanks.
ReplyDeleteI hope the commenter from yesterday, the one who claimed the law regarding attorney fees against pro se parties does not apply to you, checks back to support his position. Also, hope he tries to counter the law you have cited here.
ReplyDeleteAfter the mortgage crisis of 08-09, you'd think Chase might be a little more cautious about its business. This shows the company just does not give a damn about the law or its duties to customers.
ReplyDeleteRoger: I used to work in real estate closings & I'm a bit confused by both how the foreclosure was conducted as well as your interpretation of it. Alabama is supposed to be a non-judicial foreclosure state where they can sell it without involving the court. However, court judgments which are duly recorded, do create liens which attach themselves to the judgment debtor's real property. If I were you, I'd work with my attorney to analyze the "priority of liens" & make sure any judgments from counties where you did not own real property were duly recorded in the county where you owned real estate & that the judgment creditor(s) who were paid were properly paid according to their priority. In these cases, your former enemies can become your friends. Surely, you had to have at least one unpaid judgment under the 20 statute of limitation or 10 year limitation from the case law hanging out there from all the people who had sued you.
ReplyDeleteIf I remember correctly, a few years ago, you mentioned something about Bill Swatek holding the deed to your house, due to the McGarrity litigation? It sounds like Bill Swatek may have gotten screwed out of some money he had coming to him or his client. Does Bill know about all this? Maybe he needs to.
ReplyDeleteI'd also look at compliance issues. Was the federal RESPA statute followed & was an ejectment suit filed & were you actually served and given time to answer or did they just go & kick you out with no due process of law?
ReplyDeleteRob:
ReplyDeleteAt @4:45, Swatek had a sheriff's deed on our house. The way it was written, it gave him my portion of the house (because the McGarity lawsuit was against only me) and Carol had her portion. I'm not sure, however if that sheriff's deed was a reflection of Alabama law. Seems odd to me that I could pay tens of thousands of dollars to maintain my rights to the house, and Swatek can take it over due to a $1,500 court judgment that he never asked to have paid. The whole sheriff's sale process was a fraud, and I suspect the sheriff's deed itself was a fraud, too.
(Note: If you've ever seen an Alabama sheriff's deed, from a real case, I sure would like to look at it. I've never been able to determine if there is standard language, under the law, that guides these documents. I'm sure it's easy for any sheriff -- or a lawyer working on behalf of the sheriff -- to draw up a deed that does not remotely reflect Alabama law.)
Rob:
ReplyDeleteAt @5:59, you raise a number of good questions, and given that I had just been released from jail and was on the verge of some sort of breakdown, I'm not sure I have the answers. I asked Carol, and here is her recollection. Spartan Investors, which supposedly bought the house at auction, told us (via a "friend" of ours) they would not file a legal action if we got out by a certain date. We came to an agreement on an exit date, but Spartan filed an ejectment lawsuit anyway, via Najjar Denaburg. Carol's memory is that we only knew about it because someone left a copy of the lawsuit in our mailbox. We never signed for it, it never was handed to us, and service obviously was not proper. We went ahead and left, in part because of the lawsuit threat, so yes, our rights to due process were trampled.
Note: I say the lawsuit was filed, but I don't know for sure that it was. I don't have access to AlaCourt and have never been able to check and see if the case is there. If you have any way to check AlaCourt I would be interested to know if an ejectment case appears against us in Shelby County in 2014. It's possible they just drew up the lawsuit, threw a copy in our mailbox (which probably is a federal offense -- we saw Lindsay Jackson Davis, of Spartan, going through our mailbox at least once), and didn't even file it, just using the document for terrorism purposes.
Rob:
ReplyDeleteAt @4:37, I assume you read the law cited in the post. The surplus funds belong to Carol and me, the mortgagors, and Chase had a trustee duty to make sure the money got to us. Unless I am presented with law that says otherwise, I don't give a rip who had a junior lien on our house. Perhaps they are entitled to something, if they can get it, via some kind of process -- although we've received no notice of anything like that. But the law is real clear, to me, that Liberty Duke is entitled to zero from our foreclosure proceedings.
Surplus funds don't normally happen with most foreclosures, so it's possible a lot of lawyers don't even know the relevant law. It's also possible that a lot of lawyers ignore the law because they treat the mortgagors like non-entities. The whole process treats the homeowner as if he doesn't exist, especially in a corrupted process like ours.
For the record, I don't think it's a matter of my interpretation. I cited the relevant law word for word, and it's real clear what it says. Perhaps you were told something in your real-estate days that wasn't necessarily so -- or it doesn't apply to a foreclosure situation such as ours. My old saying has been, "If you want to know something about the law, the last person you want to ask is a lawyer."
BTW, when Robert Wermuth of Stephens Millirons, informed me that he had shipped the money to Liberty Duke, per Alabama law, I said, "What Alabama law? What Alabama law allows you to do that?"
He never responded.
Didn't they all say throughout the defamation trials, that they didn't expect to collect anything from the judgments & the main point was to restore their reputations? I've learned my lesson. I'm not going to own real property in Alabama. The judges are allowing people who have voluntarily entered the public arena to sue you & take your land with no jury trial & no due process of law in some very questionable court proceedings. If I were an outsider from a state with a functioning adversarial court system, it wouldn't be difficult to quickly figure out that Alabama courts are just a rubber stamp, allowing anyone with an ulterior motive to take your property just because they've decided they don't agree with some opinions you've expressed on your blog. What's going on in Alabama is not the American way. If I weren't from this state, I'd be scared to set foot in it. It's typical for mortgage lenders and real estate investors to say they're going to work with you, not foreclose or not file an ejectment suit, then turn around and foreclose or sue you anyway. That's what RESPA is all about. They're even foreclosing on people who are current on their mortgages just to get houses back onto the market so the lawyers, realtors, appraisers & other real estate professionals can get paid. It's called "jumpstarting the market." Bankers can't make money & have girlfriends with good credit who can pay their own bills from working as lawyers & realtors if houses aren't on the market and being sold. If too many people have their houses paid for or have too much equity, you've got to "jumpstart the market" by calling in some debts. I used to hear the real estate people in Montgomery talk about needing to "jumpstart the market" & I didn't fully comprehend what they were talking about at the time, but it's basically calling in debts on Working Class people & kicking them out of their homes so lawyers & bankers can keep their wives & girlfriends in the kind of lifestyle they want. In other words, people lose their homes so lawyers & bankers can buy their girlfriends stuff like sexy lingerie & expensive cars & homes they don't really need. Even many of the smaller bankers & lawyers eventually fall victim to the cycle because at some point they can no longer afford to "upgrade" & their wife or girlfriend leaves them for a richer lawyer or banker. That's how you explain some of the lawyers who flip out and start shooting people like the guy in Houston did just recently.
ReplyDeleteSounds like Swatek's deed might not have ever been recorded & the period for the statute of limitations has probably run on the McGarity judgment because there was no execution on the judgment within 10 years per case law. This is an example of how lawyers charge their clients huge fees without providing any value to them in the form of revenues. McGarity & several credit card issuers paid lawyers to win cases against you, but it sounds like Liberty Duke got your money because after the earlier lawsuits concluded, documents didn't get recorded & writs of execution didn't get prepared, etc. Timing & follow up is very important in he debt collection business. I've seen debtors who owed multiple creditors hundreds of thousands of dollars get out paying some or most of it because judgments didn't get recorded in the proper jurisdiction or the judgments we're never successfully executed on before the statute ran. Going to court is supposed to be about getting paid, but I've seen so many people just get shaken down for legal fees without ever collecting any money for their troubles. This is why Europeans embraced arbitration & mediation years ago. The court system isn't what people think it is & that's especially true in Alabama.
ReplyDeleteSorry but to ask: what was house sold for? What was amount left on note? Was there an abstract of judgment or a judgment lien on the house? Even if inferior, that could prevent you I believe from getting the proceeds.
ReplyDeleteI commented previously that you should file a complaint with the Consumer Financial Protection Bureau. They investigate and prosecute for federal violations, which may have happened here. Now, I would further suggest that you may be wasting a bunch of time just writing about this. If it is bad as you claim you should start searching for an attorney who can pursue this for you. You can write 'till the cows come home, but that is not going to settle the claim. Find a good attorney and sue them for what seems to be multiple federal violations. You could probably find an attorney willing to take it on a partial contingency.
ReplyDeleteRob:
ReplyDeleteI can't remember if Swatek's deed ever was recorded, but I'm pretty sure McGarity's judgment never was recorded. Need to check on that, but if the judgment never was recorded, any action based on that was void.
@9:39 -- I'm doing much more than just writing about it. Will keep audience here posted.
ReplyDelete@2:57 -- All of the questions you ask are answered in the post, as are citations to law that show the surplus funds belong to us, regardless of any senior, junior, sophomore, or freshman lienholders.
ReplyDeleteAboard the Eliza Battle,the crew was securing gear in anticipation of imminent battle.
ReplyDeleteBaxley had abandoned ship during the night and was seen boarding the Victoria. John and Thomas Yancy were building a full scale model of the Titantic with the discarded cutty sark crates.Someone had abducted the nannie dee figurehead during the night.
Upon entering the war room Admiral Tryon had assembled in the galley,Sheldon saw two books on his desk; The Yom Kippur War and Vladimir Vinogradov's memo "The Middle eastern Games". Did not know Admirals studed ground wars to prepare for battle, remarked Sheldon. The Admiral said the comming battle has similarities to the October War.There was a collusion between some of the combatants. Grandmotherly Golda
Meir sacrificed some of her troops for a political gain.
When Eliza Yancy brought them some coffee, the Admiral asked Eliza how she ended up on a ghost ship fighting the Victoria. Eliza said that in 2007,Auburn submitted a fraudulent pre-clearance to the Justice Dept., secretly de-annexing the land where she was buried, to facilitate the theft of property by the land thieves.
In July 2009 a land thief discarded all the grave markers at the Yancy cemmetery and placed RVs for football fans on the graves. In November 2009, the Justice Dept. was made aware of the fraudulent pre-clearance. In December 2009, the Justice showed up in Auburn. In Jan. 2010 the land thieves stole my great grandson Robert Lewis Yancy's land and tried to sell it to Campus Crest. Upon seeing a friend of the Vice-President involved with land thieves, the Justice Dept. investigated Milton Mcgregor as a diversion. In 2012 after 2 trials and zero guilty verdicts.McGregor started the procedure for his civil suits.The land thieves took refuge on the Victoria. IN 2012, to pre-empt the disclosure of the Justice Dept. misconduct in a lawsuit, the Justice Dept. decided to come clean on what they did to McGregor but they needed a diversion to feed the press. The Sec. of State decided to produce a diversion in the middle east similar to the Bill Clinton diversion in August 1998 during the Monica Lewinsky affair. The plan was a disaster for the US and a success for Russia.
Sheldon remarked that it was a brilliant idea to entertain the bingo witnesses in Yancy and for Fred Yancy to get Shuler involved in the fight. Eliza said Mike came up with entertaining in William Lowndes Yancey and the stranger in the shadows suggested drafting Shuler.
Sheldon asked the Admiral what the battle field will look like. The Admiral said the two cold war powers would play a part. Two senators are on the Victoria. The Russians have the Sec of State's 2012 e-mails (and apparently the Iranians) and will threaten to release them if the Justice Dept. attacks the Victoria. If the Victoria is Victorious, the Russians will own two senior Senators.
Ghosts can view the battle and the "behind the scenes deals" in realtime. Mortals must wait decades for historians to uncover the "deals".
The online land records & recording index in Shelby County is not available for some reason.
ReplyDeleteAs I remember, Attorney Angie Ingram filed a collection suit against you on behalf of NCO as collection agent for American Express back in 2007 ish, which would mean the date of their judgment is less than 10 years old & likely still collectible if the judgment was duly recorded in Shelby County & not otherwise satisfied.
"10. On July 5, 2007, NCO referred the account to Ingram and Associates (Ingram) to file suit." http://legalschnauzer.blogspot.com/2010/02/debt-collectors-motto-lie-early-and-lie.html
If the judgment for NCO wasn't satisfied & I was Angie Ingram, I'd want to know why my client & I didn't get paid first, instead of Liberty Duke because we were in line to be paid before she was. Heck, NCO or the title insurance company might even pay some of your court costs if it benefits them because they may have been damaged too.
Owing money to multiple creditors can be a good thing, because you can build alliances with some of them against the other ones. Why do you think I've been working less hours & paying on the same judgment to Nadler & Nadler for the last 11 years? When I make too much money, I have to take some time off work & let some interest build up on the Nadler's judgment so, there will never be an opportunity for my other creditors to get paid.
The other creditors sue me & I have all this leverage to settle for much, much less or just not pay at all because they know I'm going to be paying Nadler & Nadler for the rest of my life. The others know they'll never get a dime out of me unless they settle for less now because I owe the Nadlers so much.
Yes, Nadler & Nadler has been my secret weapon against all the other debt collectors. If you need to get out of paying some other debts, make sure Nadler & Nadler has a judgment against you. I highly recommend owing their clients money. In fact, I'll never carry a credit card from anyone else except for MBNA & JP Morgan Chase because they are Nadler's clients & the Nadler Brothers have become my Honkys for life for this very reason.
We have this unique, symbiotic relationship. I pay the Nadlers while the other creditors are forced to sit back & watch their judgments expire. It's a neat little game you can play with your creditors. It's fun to watch some of them do without while the Nadlers do so well with my account. You actually get some of the power back that was taken from you by the courts because you're getting to pick winners & losers as far which creditors are going to get paid, if ever when you use my method.
Keith Nadler is probably the best negotiator I ever faced in court. I actually could have won my case on appeal & cost him a lot of time and money, but he did such a great job, he earned my respect & I was happy to settle with him because I needed to use his client's judgments as a buffer against having to pay on the others. That's because I really hate some of the other creditors like Wells Fargo for opening fake accounts on people & shit. I'll never willingly pay them a dime. Then you have those motherfuckers over at HSBC which caused me to lose half my clients at H&R Block and thousands of dollars in commissions. They'll never get a dime out of me either. I take pleasure in hanging up on them whenever they call. I'll pay the Nadlers forever & Wells Fargo & HSBC can go get fucked!
Here we are eleven years after Keith sued me & no one has collected even a portion of a judgment against me except for Keith Nadler. If I ever get them paid off, you know the first thing I'll be doing is open another credit card with MBNA or Chase and run up a bunch of charges, but I'll make sure my judgments with the other creditors have expired first!
Without records in front of me, I'm going from fuzzy memory. I know Ingram threatened legal action against us, but we filed sued against her first, in federal court for violations of FDCPA. Judge Abdul Kallon protected her, but the violations were so glaring, that I think she decided it was best not to screw with us.
ReplyDeletePretty sure there is no lawsuit against us from A. Ingram and certainly no judgment.
Again, it doesn't matter in terms of foreclosure because those surplus funds belong to us -- and they never went to us.
to @ 9:39 If you would be a little more observant, you would see two cows in the byre.
ReplyDeleteI'm with you on the case law about the surplus funds belonging to you. Now, let's play a game called Shelby County Courts ignore the law like they usually do. This means Swatek owned an interest in your home & McGarity's judgment may or may not have been fully satisfied at the Sheriff's sale whereby Bill Swatek obtained an interest in your home which means McGarity may have had a lien against your home in addition to Swatek's deed & if I were Swatek I'd be wondering why I didn't get a check for at least myself & maybe for my client. Take advantage of the Robby Hill method of pitting your creditors against one another. Remember, they decided to not work with you on your debts, foreclose on you & eject you from your home. So, make it a fucking expensive endeavor for them. I'd turn it into a real shit show with the title insurance company having to pay claims & the insurer going after the lawyers personally for the cost of the claims & I'll keep helping people screw their creditors until some lawyers decide to help me. Remember, The Force will be with you always & if someone isn't feeding you, financing you or fucking you, you don't owe them a goddamn thing!
ReplyDeleteRob, I don't have all the law in front of me at the moment, but here is my memory. I'm pretty sure the foreclosure extinguished Swatek's sheriff deed, so he was out in the cold at that point. If you look at Shelby Co. Probate Court records -- and they are online, and you have to use Internet Explorer to view, I think -- you will see a document where McGarity appears to transfer his interest in the judgment to Swatek. I'm guessing this is because McGarity had trouble paying Swatek, who had accomplished absolutely nothing for him. (Note: No one ever sent a demand letter for us to pay the judgment, which was roughly $1,500. I'm guessing that Swatek told McGarity it's going to cost you more than that to get it.) The sheriff's deed issue, threatening to take our cars and house only came after I started my blog. All that crap started about six months after I started Legal Schnauzer. Just another example of how Alabama right-wingers -- and I'm pretty sure Bob and Rob Riley were involved in the deed stuff because I lost my job at UAB around same time -- want to kill the First Amendment. They aren't remotely afraid of al.com and that crowd. But they are afraid of Donald Watkins and me.
ReplyDeleteNote: I think it's possible that any junior liens were extinguished with the foreclosure, which might be another reason had no claim on the surplus funds. I'm quite certain that Swatek's sheriff's deed was extinguished, and that might have been the case with Duke's lien. Plus, I think it's highly likely that McGarity's judgment never was recorded, which means Swatek never had grounds to seek a sheriff's deed. That means he basically stole my interest in my home for probably 8 years or so.
Is Chuck Dean about to be in the news again?
ReplyDeletehttp://www.alreporter.com/breaking-bogus-report-leaked-by-bentley-cohort-to-smear-nemesis/
"“The timing on this one is too clever by half,” said a former Bentley advisor. “This has Rebekah’s written all over it. She is the only one dumb enough to think this kind of stunt would work.”
Others believe Mason, who continues to serve as Bentley’s closest confidante and a regular guest at the Governor’s various living quarters, was the force behind Collier’s termination.
A senior staffer who left the administration during the turmoil following Collier’s firing points the finger at Mason for several leaks, including leaks given to former al.com scribe, Chuck Dean. Within minutes of Bentley placing Collier on “medical” leave, Dean allegedly received a tip from Mason which led to a story about Collier being punished for disobeying Bentley’s order not to cooperate with the Attorney General’s Office."
Thanks for sharing this URL, @8:19. Interesting stuff, for sure. The article refers to "former al.com scribe Chuck Dean." Did he quit, was he booted? I didn't realize he was "former," although he's certainly had a low profile lately.
ReplyDeletePeople are afraid of you because you're doing your civic duty as a journalist which is something al.com hasn't been doing until recently. That one guy, Kyle Whitmire, would get it done if they'd take the restrictions off of him & stop accepting kill fees from the GOPers. He gets it right on the Republicans like Roy Moore & Mike Hubbard when it's in lobbyists' interest to allow the story to see the light of day.
ReplyDelete